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.]
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.
*594
*595From this plat and from the evidence it appears that this alleged new rqad is a mere cul de sac, terminating at the east line of Chandler’s land, nearly a half mile north of the private way.
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.
Jurisdiction. I. The result of the action must be either to maintain Chandler’s easement over the lands of Eeading and Sparks, or to rid such lands of that easement. Our jurisdiction in such cases is clearly recognized by Brace, J., in Wells v. Harris, 137 Mo. l. c. 515, wkei.ejn pe approved the certificátion of that case from the St. Louis Court of Appeals, on the strength of the ease of State ex rel. v. Rombauer, 124 Mo. 596. The only difference between the Wells case, supra, and this is, that in the Wells case it was sought to establish the easement of a private way, whilst here it is sought to remove it. On the question of jurisdiction there is no distinction. We therefore retain jurisdiction.
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 *596practical access thereto from a public road, without crossing the lands of others, ... it shall be lawful for the county court to vacate such private road in the manner hereinafter provided. ’ ’
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 *597apply for such a way “to connect with some public road . . . at some convenient point.” The idea of convenience runs through the whole matter like a silver thread. When we come to the statute (Sec. 10457, supra) under which this action is brought we find the same silver thread. There it is said the private way may be vacated if it be made to appear that the landowner has, at the time, “convenient and practical’’ access to his land from a public road. Mere access to a public road, under this statute, is not sufficient to authorize the vacation of a private road. Such access must be “convenient and practical,” and whether it is “convenient and practical” is a question for the trier of the fact to determine from the evidence. In determining this fact we think the location of the residence, as well as all other facts, must be considered. We must not lose sight of the fact that the Legislature, in placing this limitation in the statute, i. e., that the access must be “convenient and practical,” may have considered that the owner of the private way might have been compelled' to pay damages for his way, which in the first place connected with a public road at a “convenient point.” In other words, the legislative- idea, at least, was that his private way could not be disturbed until it appeared that after its acquisition a'“convenient and practical” access to a public road had been brought about. The question seems to be one of first impression, as I find no case construing this statute (section 10457), from this angle. Under the facts in this case, we are constrained to hold that plaintiffs failed to show that defendants had convenient and practical access to a public road, outside of their private way, and the judgment nisi should be affirmed.
Bladr, J., concurs; Woodson, J., dissents in opinion filed in which Bond, J., joins. There being no majority opinion, the cause is transferred to Court in Banc. PER CURIAM.The foregoing opinion of Graves. P. J., from Division, is adopted as the opinion of the Court in Banc.
Walker, Faris and Blair, JJ., concur; Woodson, J., dissents in an opinion filed, in which said dissenting opinion Bond and Williams, JJ., concur.