(dissenting). — I respectfully dissent from the conclusion reached in the principal opinion. I believe that the judgment of the trial court should be affirmed. It is wholly immaterial whether the road in question is a public road or is a private road. In either *302event the plaintiffs are entitled to the relief asked and to the relief granted by the trial court.
The cause of action here is not for a declaratory judgment as to whether the road in question was legally established as a public road under Sec. 228.190 KSMo 1949 (that is, by use by the public for 10 years continuously and the expenditure of public money or labor thereon for such period). The action is one for an injunction to restrain the defendant from obstructing a road in which plaintiff claims a property right, to wit, a right of passage from his farm to the relocated public road. He claims that the road in question is his sole means of ingress and egress to his farm; and that his right of passage is [37] based upon adverse use by him and those under whom he claims and by the public in general for a period far greater than the 10 year statutory period. If plaintiffs have property rights in the particular road and their rights have been invaded by the obstructions placed by defendant, the plaintiffs have a right to the relief sought and to the relief granted whether the road is a private road by prescription or a public road by prescription. It is wholly immaterial to any of the essential issues in this action for an injunction whether plaintiffs’ right to have the obstructions removed arises from the obstruction of a public or a private road. It is the interference with plaintiffs’ rights in the road that gives rise to the cause of action presented.
Assuming that the evidence produced is insufficient to show that the portion of the old road from the plaintiffs ’ west line to the relocated public road was re-established as a public road subsequent to 1903, because of the absence of proof that public money or labor had been expended on the particular portion of the road continuously for a period of 10 years subsequent to 1903, yet without objection the proof clearly showed the use of this part of the old road as a private road by plaintiffs and those under whom they claim for the whole period from 1903 until the filing of the amended petition on May 31,1949. In 1903 when the old road was vacated and the highway relocated, Jordan, the then owner of the 80 acre tract, fenced the 80 acres and left a gap at the west side of the property and continued to use the old road as a means of ingress and egress to the 80 acres from the relocated public road. From 1920 until 1937, Thyr, the then owner of the same 80 acres, continued to use this part of the old road as a means of ingress and egress to the property. We may concede that this portion of the road was used only “by Thyr and those doing business with him.” After the 80 acres was fenced and that part of the old road across it was closed, the west portion was a mere cul-de-sac extending from the relocated public road to the gap at the west edge of the 80 acres now owned: by plaintiff, but the evidence shows that everybody that wanted to use it used it.
Leonard Brown acquired the property from Thyr in 1937 and owned it until 1942, when plaintiffs acquired it. At that time there was a *303wire gap across the old roadway where it entered the Sellers’ property. No one objected to his use of the defendant’s property in traveling along the old road from the west side of the 80 acre tract to the relocated public road.
Plaintiff Sellers acquired the 80 acres in August 1942 and he continued to travel the road from his property line to the relocated public road until the time of the trial, some nine years prior to the filing of the amended petition on which the cause was tried. We may concede that the evidence shows that the old road from the Sellers property to the relocated public road was “used only by Sellers and those with whom he did business.” It was a cul-de-sac and didn’t lead any place except to plaintiffs’ property.
Further, the evidence shows that Jordan, Thyr, Brown and Sellers, the various owners of the particular 80 acre tract in question, used this particular road as a matter of right on the theory that it was a public road and because it was the only means of ingress and egress to the premises owned by them. This evidence alone fully sustains the decree entered by the trial court enjoining the defendant from obstructing the roadway and we think it is wholly immaterial that the trial court may have granted the relief upon a mistaken notion about the road being a legally established public road.
In the amended petition for an injunction the plaintiffs alleged that they were the owners of the S % of the SW % of Sec. 29, Twp. 36, R. 14 in Laclede County, Missouri; that they resided in a dwelling house on said land; that there was a roadway leading from their said premises at the west side thereof in a northwesterly direction, a distance of approximately 300 yards, to a public road; that said roadway was their only means of travel from their said premises to said county public road and to their trading point and market; and that there was no other roadway leading in any direction from their said described premises.
In this connection, we may say that only the west part of the old road is in question here. The rest of it has been under fence by Sellers and those under whom he claims since the road was vacated in 1903. The evidence shows and the trial" court found that the part of the road in question extends for a distance of approximately 276 yards across the northeast corner of defendant’s land from plaintiffs’ property to the present public road leading to Stoutland. In the judgment the court found “that said roadway is approximately 12 feet wide, is a well-traveled roadway, is marked out with ditches on each side, its bed is well worn and defined ánd it is a monument on the face of the land through which it passes.” Defendant was permanently enjoined from placing fences or obstructions across this roadway.
The petition further alleged that the defendant was “the owner of the SB % of the SE> *4 of Sec. 30, Twp. 36, R. 14 in Laclede County, Missouri, which said 40 acres of land adjoins the above described *304land of plaintiffs on the west; that the above described roadway from plaintiffs’ premises to the county public road crosses the northeast corner of defendant’s land; that said roadway has been continuously and adversely used for a period of 65 years by the people in that neighborhood and vicinity and by the traveling public with the knowledge of defendant and his predecessors in title; that public money and labor have been expended on said roadway for a number of years; that plaintiffs, their predecessors in title and others have used the said roadway for many years in traveling to and from the property of plaintiffs and other property in that, community; that the defendant on or about April 19, 1949 placed posts, wire and fences upon and across said roadway within a few yards from plaintiffs ’ premises thereby closing said roadway to travel and thereby preventing the plaintiffs from using said roadway as a means of ingress and egress to and from their premises * * *; that plaintiffs have no other means of ingress and egress to and from their property except over the above described roadway; * * * that unless said posts, wire and fences are removed from said roadway plaintiffs will have no means of ingress or egress to and from the described premises; * * * that they have no adequate remedy at law and will sustain irreparable injury unless this court enjoins and restrains defendant from obstructing said roadway and interfering with free passage thereof by the public and the plaintiffs in particular.” Plaintiffs then prayed for an injunction and “further relief.” The answer was in effect a general denial.
It is true that plaintiffs alleged that the road in question was a public road by continuous and adverse user for 65 years and by the expenditure of public money and labor thereon. In so doing they assumed an unnecessary burden, nevertheless plaintiffs did allege a property right in the particular road, to wit, that the road was their only means of ingress and egress from their property to the public highway and they further alleged special and peculiar damage by the obstruction. Further, without objection they proved the use of the road under a claim of right, on the theory that it was a public road, by them and the prior owners of the 80 acres in question from 1903 to 1949. They showed this part of the old road was and had been since 1903, the sole outlet to this property, since a creek, seepy springs and wet ground prevent other access to the relocated public road. .
The fact that plaintiffs’ land was located on a cul-de-sac and used only by them and those doing business with them was no bar to relief by injunction when their means of- ingress and egress was obstructed. ‘ ‘ The character of a road, as to whether or not it is public or private, is determined by the extent of the right to use it, and not by the extent to which that right is exercised. If all the people have a right to use it, it is a public way, although the number who have occcasion to exercise the right is very small.” Phelps v. Dockins (Mo. App.), 234 S.W. 1022, 1023; Patton v. Forgery, 171 Mo. App. 1, 153 S. W. 575 *305(one owner) ; Kansas City v. Missouri Pad R. Co. (Mo. Sup.), 229 S.W. 771, 774.
Further, the right of access to a public road of one' living on a culde-sac is a property right and injury thereto can only be determined by a judicial investigation in a court. State ex rel. Rutledge v. Public Service Commission, 316 Mo. 233, 289 S. W. 785, 788. And see Annotation: “Private Easement in Vacated Highway,” 160 A.L.R. 644, 649. Whether the road was a legally established public road under' the statute or whether it was a private road by prescription,' plaintiffs had to allege and prove a right in themselves'to the relief asked and they had to show special and peculiar damage. Patton v. Forgery, supra, 171 Mo. App. 1, 8. This was necessary to the maintenance of the action on either theory. Assuming that the evidence' is insufficient to show the right to relief on the theory that plaintiffs.suffered special and peculiar injury by the obstruction of a legally established public road, it clearly shows the right to relief on the theory of interference with plaintiffs’ property interest in a private road. Wallach v. Stetina (Mo. App.), 28 S.W. (2d) 389, 390; Novinger v. Shoop (Mo., Sup,.), 201 S.W. 64; Downey v. Sklebar (Mo. App.), 261 S.W. 697; Anthony v. Kennard Bldg. Co., 188 Mo. 704, 719, 87 S.W. 921. In either case plaintiffs proved that their rights were obtained by adverse use for a sufficient length of time.
While the proof shows that'the part "of the old road in question here was open to the public and was used by the public, the evidence also shows that it was plaintiffs only means of ingress and egress and, therefore, while plaintiffs shared its use with the, public, the plaintiffs’ use was different from that of the general public. Sanford v. Kern, 223 Mo. 616, 628, 122 S.W. 1051; Schroer v. Brooks, 204 Mo. App. 567, 224 S.W. 53, 56(6).
There is authority to the effect that the statutory method of establishing a public road is not the exclusive,'method (Borders v. Glenn (Mo. App.), 232 S.W. 1062), but a determination of that issue is not essential here.
Since the evidence shows that plaintiffs are entitled to the relief sought and to the relief granted, if the court should find that the cause was brought and tried on an erroneous theory prejudicial to defendant, still the judgment should not be reversed without a remand. In view of the pleadings, the evidence and the findings of the trial court on conflicting evidence, we think the judgment should be affirmed.
PER CURIAM: — Counsel for respondents Sellers have filed a motion to correct the opinion in this case, designating it as the majority opinion; “to show the true facts.” This has.reference to statements in the second and third paragraphs of the opinion reciting that after this suit was brought by the respondents Sellers in 1949 and was held. *306under advisement by; .the circuit court, they then sold the land involved on January 1, 1951 to a Mr. and Mrs. Gearhart, but that the deed was placed in escrow and not recorded, and the fact of such sale was unknown to the circuit judge or the appellant Swehla until after the .cause was decided. Hence appellant Swehla contended the case was and is moot.
Counsel contend, the majority opinion, as written, imputes bad faith to them and their clients, the respondents Sellers. "We do not so construe the opinion, nor is such imputation intended. The question is .a legal issue whether the suit could be carried forward to a conclusion and on appeal by the respondents Sellers after they had sold the land, without a substitution of the real parties in interest.
The motion to correct the opinion is overruled.