(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, *599within the meaning of said constitutional provision? I apprehend not. While the private road in that case, as in this, might have been more convenient to Chandler than the public road, yet in no sense of the word could it have been seriously contended that its existence was necessary for his ingress and egress to and from his property.
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; Cox v. Tipton, 18 Mo. App. 450; Cooper v. Maupin, 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 *600it is more convenient than the way which he has. [Wash-burn on Easements (3 Ed.), 234, 235; Cooper v. Maupin, 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*601guage of the majority opinion filed in Division, it may truthfully he said: “It may he conceded that it has been announced in the text-books and cases that private roads are ways of necessity, and when the necessity ceases the private way should cease.”
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, 101 Mo. 192; State ex rel. v. Dreyer, 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 *602condemnation for the purpose of a private road, one limited in duration and use, and without the consent of the original owner or an additional condemation, be converted into a public use and for an unlimited time; such are the distinctions between private and public ways as are made in the Constitution and statutes of this State. The former being limited in duration and usage is naturally acquired for less compensation than is a public road which is unlimited both as to duration and use. This rests upon the same principle that a life estate in land is not worth as much as the fee thereto, and for that reason it may be acquired for less money than the fee. The private way in the ease at bar was acquired by condemnation, and, of course, was obtained for a less sum than it could have been acquired by the respondents, had it been a public road, unlimited in duration and use. In the case at bar the appellant’s property was condemned for a limited time and purpose and the respondents are now trying to hold the same for an unlimited time and use; if successful in that attempt, then, in my- opinion, the latter would obtain an estate in the former’s land, the difference between a limited and an unlimited estate, without just compensation paid therefor, in violation' of both the State and Federal constitutions; also without due process of law.
I, therefore, dissent.
Bond and Williams, JJ., concur with these views.