State ex rel. Northern Pacific Railway Co. v. Railroad Commission of Wisconsin

The following opinion was filed June 3, 1909:

KeewiN, J.

1. It is contended on the part of each relator, but especially by the Great Northern Railway Company and the Lake Superior Terminal Transfer Railway Company, that the proceedings to obtain a certificate of convenience and necessity were premature, because the point of crossing should have been first • determined and the right to cross obtained before such certificate was granted. This contention involves the construction of the acts of the legislature set out in the statement of facts. •

Subd. 6, see. 1828, Stats. (1898), provides that if the corporations cannot agree upon the amount of compensation to be made “or the points and manner of such crossings and connections the same shall be ascertained by commissioners to be appointed by the court, as is provided in this chapter in respect to acquiring title to real estate.” It is insisted that this provision is still in force, and that the point of cross *153 ing must be so determined by commissioners appointed by the court, and not by the Railroad Commission.

Sec. 1797 — 56, Stats. (Laws of 1907, @h. 454), provides that “every crossing of the track of a steam railroad hereafter made by the track of another steam railroad . . . shall be above, below or at grade of the tracks proposed to be crossed as the Railroad Commission shall determine.” And it further provides that in such determination the Railroad Commission shall prescribe the kind and character of the protective appliances, if any, to be installed, operated, and maintained at such crossings. Sec. 1797 — 40 provides for the application for certificate of convenience and necessity within six months after the publication of the articles of association, and sec. 1797 — 41 provides that no railroad corporation shall make application for such certificate unless it shall have caused a copy of its articles of association to be published in one or more newspapers within six months prior to the time of making the application. Sec. 1797 — 43 provides that every application for a certificate of convenience and necessity shall be accompanied by complete maps and profiles of the line of the proposed road, which shall be filed with the application, and that prior to granting or refusing the certificate the Railroad Commission shall have the right to permit errors, omissions, or defects in the application, maps, and profiles to be supplied or corrected, and also to permit changes in the proposed route where deemed desirable. Secs. 1797- — 45, 1797 — 46, and 1797 — 47 provide for hearing counsel and taking evidence in support of or in opposition to the application. Sec. 1797 — 48 provides that upon conclusion of the hearing of the application, if the Commission or a majority of them shall find that the proposed road would be a public convenience and that a necessity requires the construction of it, the Commission shall forthwith grant and issue to the applicant a'certificate that public convenience and necessity require the construction of *154 said road as proposed, and shall approve tbe maps showing tbe proposed route of said railroad and file tbe same in their office, and tbe applicant shall canse a copy of such maps, certified by tbe secretary of the Commission, with tbe seal affixed, to be filed in tbe office of tbe register of deeds in each county in which such railroad shall be located, and such filing shall be a condition precedent to the right of the applicant to institute and maintain condemnation proceedings for the acquirement of land for right of way, stations, and other necessary uses. Sec. 1797 — 58 provides for a change or alteration of the route by a vote of two thirds of the directors of said railroad, and sec. 2, ch. 454 (p. 1086), Laws of 1907, provides for the repeal of all acts in so far as they are inconsistent with said chapter.

It is clear, therefore, from the foregoing statutes that subd. 6, sec. 1828, Stats. (1898), is still in force, except in so far as it is repealed by ch. 454, Laws of 1907. Prior to the-Laws of 1907 a railroad company had the right, by a vote of its board of directors, to locate the line of its railroad. In re Milwaukee S. R. Co. 124 Wis. 490, 102 N. W. 401; In re Eastern Wis. R. & L. Co. 127 Wis. 641, 107 N. W. 496. Subd. 6, sec. 1828, Stats. (1898), as it existed before the passage of ch. 454, Laws of 1907, provided that in case of crossing of one railroad by another, where the corporations could not agree upon the amount of compensation “or the points and manner of such crossings and connections,”' the same should be ascertained by commissioners to be appointed by the court. Ch. 454, Laws of 1907, we think obviously was intended by the legislature to authorize the Bail-road Commission to settle the question of crossing which by the former law was to be settled by commissioners appointed by the court, and therefore the right of the Bailroad Commission to determine whether such crossing should be above, below, or at grade of the tracks proposed to be crossed, in view of the different statutes above referred to, vested the *155 Railroad Commission with power to determine the point of crossing as well as whether it should be above, below, or at grade. The provisions of the statutes requiring maps and profiles to be filed with the Railroad Commission, describing” particularly the location of the proposed road, and the provisions with reference to the approval of such maps and profiles and filing the same, seem clearly to indicate the legislative intention that the action of the Railroad Commission-was to be based upon the particular line indicated in the-papers filed with it for its action, except in so far as errors-might be corrected and changes made as provided under the law heretofore referred to. We think, therefore, it logically follows, reading all the provisions of the statute together, that-the Railroad Commission is authorized to determine the point of crossing as well as the manner, and in passing upon the application the point of crossing is included in the determination of the manner. In many cases at least the point of crossing would have a bearing upon the manner of crossing, whether above, below, or at grade. Besides, the Commission-. under the law is authorized to pass upon the application presented and described in the maps and profiles and not upon-some other or different route. We do not see how the legislature could have intended to vest in the Railroad Commission the authority to pass upon the manner of crossing and’ withhold the power to determine the point of crossing, since-each is in a degree involved in the determination of the other..

The argument is that commissioners should be first appointed by the court to determine the point of crossing and the damages. But this would seem to be an awkward and impractical execution of. the statute; for, until the manner of crossing was determined, it is difficult to see how the-commissioners could intelligently assess the damages. Nor could they as well determine the point of crossing until the-manner was determined. In fact, it seems the most reasonable and practical construction of the statute would require *156 that the determination, of both point and manner of crossing should rest with the same tribunal, and we think such was the intention of the legislature. That the law as it existed before the passage of ch. 454, Laws of 1907, respecting the right of the railroad company to designate its route, was not abrogated by the latter law, was ruled by this court in a late case. Eastern R. Co. v. McCord, 136 Wis. 249, 116 N. W. 841.

It is manifest that the line of road designated in the maps and profiles was intended by the legislature to be the line upon which the Railroad Commission was to act in determining whether the crossing should be at grade or otherwise, and provision was therefore made for the correction of errors, omissions, or defects in the application, maps, and profiles, and that certified copies of the maps be filed in each county through which the road was to run, doubtless for the purpose of making a record of the land sought to be acquired for the road. The provisions of sec. 1797 — 58 also bear evidence of legislative intention to give the Railroad Commission power over the determination of point of crossing. • It provides for change of route by filing a map with the Railroad Commission and register of deeds where the original map fixing the location is filed, and further states:

“Provided that such alteration or change shall not deviate from the original route of such railroad as approved by the Railroad Commission for a greater distance than one mile.”

Our attention is called to Olean S. R. Co. v. Pa. R. Co. 75 App. Div. 412, 78 N. Y. Supp. 113, as controlling on this point. But the New York statute under which this decision was rendered is quite different from ours, and therefore the decision does not shed much light upon the construction of our statute. A careful examination of all the provisions of our statutes upon the subject convinces us that the Railroad Commission is vested with power to determine the point as well as the manner of crossing, and that the question of *157 compensation only under "tbe law is left to tbe commissioners appointed by tbe court. 3 Elliott, Eailroads, §§ 1119, 1120; People ex rel. Depew & S. W. R. Co. v. Board of R. R. Comm’rs, 4 App. Div. 259, 38 N. Y. Supp. 528.

2. Tbe crucial question in tbe ease is tbe distribution of burdens between tbe contending companies, namely,, wbat portion of tbe expense occasioned by tbe crossing must be borne by tbe junior company, or company seeking to cross tbe old road. Tbe right to cross before as well as after tbe passage of cb. 454, Laws of 1901, is unquestioned; likewise tbe right of tbe senior road to some compensation. But tbe court below as well as tbe Bailroad Commission held that tbe expense of maintaining tbe crossing and tbe cost of construction and maintaining tbe interlocking, derailing, and signal system should be borne one half by each road. This conclusion is based upon tbe right of tbe state to alter or repeal the charter of tbe senior company and also under tbe police power. ' Tbe right to alter or repeal existing charters is not without limitation when tbe question of vested property rights under the charter is involved. Tbe power is one of regulation and control, and does not authorize interference with property rights vested under tbe power granted. Comm. v. Essex Co. 13 Gray, 239; Sinking-Fund Cases, 99 U. S. 100; Shields v. Ohio, 95 U. S. 319; Miller v. State, 15 Wall. 418; Holyoke Co. v. Lyman, 15 Wall. 500; Pearsall v. G. N. R. Co. 161 U. S. 646, 16 Sup. Ct. 105. Tbe doctrine is well stated in Sinking-Fund Cases, 99 U. S. 100, 120, as follows:

“That this power has a limit no one can doubt. All agree that it cannot be used to-take away property already acquired under tbe operation of tbe charter or to deprive tbe corporation of tbe fruits actually reduced to possession of contracts lawfully made. . . .”

Tbe reserve power stops short of tbe power to divest vested property rights, and is embodied in tbe state constitution for the purpose of enabling the state to retain control over cor *158 porations, and. must be construed in connection with the other provision of the constitution to the effect that private property shall not be taken for public use without compensation. It follows, therefore, “that where, under power in a charter, rights have been acquired and become vested, no .amendment or alteration of the charter can take away the property or rights which have become vested under a legitimate exercise of the powers granted.” Gomrii. v. Essex Go., supra. Moreover, the power to alter or amend is a reserved power in the interest of the state to modify or repeal its own contract with the corporations. Tomlinson v. Jessup, 82 U. S. 454; State v. C. & N. W. R. Co. 128 Wis. 449, 108 N. W. 594.

The appellant acquired its right of way and constructed its road under the provisions of the laws of this state, and while subd. 6, see. 1828, Stats. (1898), was in force and unmodified, which subdivision provided:

“But no corporation which shall have obtained the right ■of way and constructed its road at the point of intersection before the application for the appointment of commissioners may be made shall be required to alter the grade or ■change the location of its road, or be required to bear any part of the expense of making and maintaining such crossing or of such proceeding.”

So under this statute in force at the time appellant con-' •structed its road there can be no doubt that railroads thereafter crossing were required to pay all the expense of constructing and maintaining such crossing. This statute is in harmony with the common law, as an examination of the authorities will demonstrate. Chicago, M. & St. P. R. Co. v. Milwaukee, 97 Wis. 418, 72 N. W. 1118; State ex rel. Minneapolis v. St. P., M. & M. R. Co. 98 Minn. 380, 108 N. W. 261; Northern C. R. Co. v. Mayor, etc. 46 Md. 425; Dyer Co. v. Railroad Co. 87 Tenn. 712, 11 S. W. 943; Perley v. Chandler, 6 Mass. 454; Richardson v. Bigelow, 15 *159 Gray, 154; State ex rel. North C. R. Co. v. N. P. R. Co. 49 Wash. 78, 94 Pac. 907.

In Boston & A. R. Co. v. Cambridge, 159 Mass. 283, 287, 34 N. E. 382, the court said:

“But at common law the crossing of a new way with one ■already in use must be made with the least possible injury to the old way, and whatever structures are necessary must be erected and maintained at the expense of the party making the new way, and, if the old way cannot be crossed without damage, the damage must be ascertained and paid.”

The appellant, therefore, having acquired its right of way under the statute referred to protecting it from all damages” ■occasioned by the crossing by the junior road, must have a ■vested property right which cannot be taken for the benefit of another railway without compensation. Although the property of a railroad is devoted to public use it is nevertheless entitled to protection, subject to reasonable regulation in the interest of the public. Eastern Wis. R. & L. Co. v. Hackett, 135 Wis. 464, 115 N. W. 382; Interstate Comm. Comm'n v. C. G. W. R. Co. 209 U. S. 108, 28 Sup. Ct. 493.

In Eastern Wis. R. & L. Co. v. Hackett, supra, this court said:

“It is a somewhat prevalent error that property devoted to public use and subject to public regulation is thereby quite out of law, or, as Blackstone says, caput lupinum. The use of such property is subject to regulation, and subject to interference by the public authorities with the dominion of the owner to a far greater degree than private property, because of its g-uasi-public character, and because of the tendency to abuse or extortion in its use and management. But, •subject to "this limitation, the owner of such property has the same rights in his property as any other owner. He may insist upon his own price therefor, except as against the power of eminent domain. He may insist upon all the advantages of location and all the advantages of existing contracts, so long as he does not run counter to reasonable and lawful regulations concerning the use of such -property.”

*160 And in W. U. Tel. Co. v. Pa. R. Co. 195 U. S. 540, 25 Sup. Ct. 133, it is said:

“A railroad’s right of way has, therefore, the substan-tiality of the fee, and it is private property even to the public in all else but an interest and benefit in its uses. 'It cannot be invaded without guilt of trespass. It cannot be appropriated in whole or part except upon the payment of compensation. In other words, it is entitled to the protection of the constitution, and in the precise manner in which protection is given. It can only be taken by the exercise of the powers of eminent domain, and a condition precedent to the exercise of such power is, we said in Sweet v. Bechet [159 U. S. 380], that the statute conferring it make provision for reasonable compensation to the owner of the property taken. ”

Upon the proposition that under the reserve power in the constitution vested property rights cannot be taken away or destroyed without compensation, the following cases are in point: Detroit v. D. & H. P. R. Co. 43 Mich. 140, 5 N. W. 275; Hill v. Glasgow R. Co. 41 Fed. 610; San Joaquin & K. R. C. & I. Co. v. Stanislaus Co. 113 Fed. 930; Shields v. Ohio, 95 U. S. 319; State v. C. & N. W. R. Co. 128 Wis. 449, 108 N. W. 594.

It seems clear, therefore, under the authorities, that the appellant when it constructed its road prior to the passage of ch. 454, Laws of 1907, acquired a vested property right which cannot be divested without compensation under the reserve power to alter or amend its charter. That the expense of constructing and maintaining the crossing, including the interlocking and derailing system, will be great is without dispute. It is equally clear that this expense is occasioned through the crossing by the junior road, and to compel the senior road to pay any part-of such expense is manifestly a taking of the property of the appellant. While it may be conceded that the safety devices are necessary and properly within the power of the Commission to order, it is also true that the necessity of such devices was caused by the crossing *161 by tbe junior road. Tbe question, therefore, is one of distribution of burdens between tbe senior and junior roads. That there is no authority of law to lay any portion of this burden upon the senior road under the power to alter or amend its charter (sec. 1, art. XI, Const.) we think is clear.

The question arises whether any portion of the burden can he imposed upon the senior company under the police power. The main contention of counsel for respondent to support the order of the Railroad Commission in apportioning a part of the expense of the crossing to the appellant is based upon the police power, and that the act of the legislature (ch. 454, Laws of 1907) is a legitimate exercise of such power. The .particular scope of the police power has been the subject of much judicial discussion. In the late case of State v. Redman, 134 Wis. 89, 114 N. W. 137, it is said that in the multitude of' attempts which have been made to define it not much has been added to the simple expression that it is the power to make all laws which in contemplation of the constitution promote the public welfare, and the controlling question in considering the scope of the police power is whether the manner of dealing with the subject in the particular case “so passes the boundaries of reason as to overstep some constitutional inhibition, express or implied.” The question of the scope of police power has been discussed-in numerous decisions of this court, and further general discussion would seem useless.

If the act in question (ch. 454, Laws of 1907) were construed as contended by counsel for respondent, namely, that the Commission has power to apportion the cost of the crossing between the roads as it did and without remedy for appellant’s damages, it would he unconstitutional and not a reasonable exercise of the police power, because such a construction would amount to a taking of the property of appellant and transferring it to respondent without compensation. We' do not think the act should have such construction, and we *162 believe it is capable of one which will render it constitutional. That the Commission had the right to order the interlocking, derailing, and signal system may be conceded, since, in view of the conditions created by the crossing, some such regulation was doubtless necessary. But it was necessary because of the crossing by the junior road, and without such crossing would be unnecessary. The Railroad Commission and the court below seem to have been of the opinion that under the law the Commission was bound to apportion the costs of crossing between the two roads, and that the statute is mandatory upon the subject. True, the law provides that the Commission “shall also fix the proportion of the expense of originally constructing, operating and maintaining such crossing, and of any protective appliances prescribed by them and the proportion of the expense of operating and maintaining the same which shall be paid by the owners of said tracks respectively.” The act must have such construction as will save it from infringing the constitution, if it will bear such construction. Now, while the language of the act may support the construction claimed for it by respondent, we think it capable of a construction which would not require the Railroad Commission to impose any part of the expense of the crossing upon the senior road which would re'sult in a taking of its property without compensation; as, for example, all damages occasioned by the crossing might be adjusted in the condemnation proceedings, and thus the equal status of the roads as to future burdens established, and perhaps other conditions might arise in cases where a part of the expense of the crossing might be charged to the senior road without violating any constitutional principle. We shall not attempt to anticipate what cases or conditions might arise which would justify charging part of the expense to the senior road. It is sufficient to say that such construction cannot be given the law as would result in taking the property of appellant for the benefit of respondent *163 ■without compensation. But, returning to the question of right to impose the burden of one half of the expense of the crossing under the police power upon the senior road, and conceding that it was within the power of the Commission to order such system, the order cannot he sustained except on the idea of payment of damages to the senior road.

Counsel for respondents seek to support their position on the authority of cases regarding public street crossings. But the distinction between the two classes of cases is quite clearly marked. In the first place, the “ways,” as pointed out in the decisions of some courts, are not of the same general nature. Among other points of distinction which may be suggested it may be observed that a street or public highway is opened and used, not for revenue, but solely for the benefit of the general public. While it is true a railroad has some of the attributes of a public highway, in that it is a common carrier of freight and passengers, yet it is owned by private parties and operated and used as other private property for gain, subject to public control, because devoted to a public purpose. And so the common-law rule respecting the distribution of the burden caused by the crossing of “ways” has been held to apply to “ways” of the same general nature. State ex rel. Minneapolis v. St. P., M. & M. R. Co. 98 Minn. 380, 108 N. W. 261; Chicago, M. & St. P. R. Co. v. Milwaukee, 97 Wis. 418, 72 N. W. 1118. And in Toledo; A. A. & N. M. R. Co. v. D., L. & N. R. Co. 62 Mich. 564, at p. 566 (29 N. W. 503), speaking on a statute similar to ours, the court said:

“But I can find no authority for compelling the company whose road is crossed to pay any part of the expense of making or constructing the crossing. Certainly, it is not for its interest to have its property thus used; and while the company in accepting its franchise must be regarded as having done so upon the condition that its road might be thus crossed upon being paid reasonable compensation therefor, there can "be no presumption that it ever consented to pay for the.privi *164 lege of being thus injured. I know of no law or principle which will compel one company to build and maintain a railroad track for another or to furnish the money necessary for that purpose; and to the extent that this section of the statute requires this to be done in this class of cases it is repugnant to the constitution.”

In Flint & P. M. R. Co. v. D. & B. C. R. Co. 64 Mich. 350, 31 N. W. 281, it was held that in condemnation proceedings by one railroad for the right to cross another, the cost of maintaining signals, a crossing system, and watchman were proper elements of damages. In State ex rel. North C. R. Co. v. N. P. R. Co. 49 Wash. 78, 94 Pac. 907, the court held that the burden of maintaining an interlocking device at the point of crossing was an actual damage to the senior road and that such was the result of the crossing, and therefore it should be charged to the road for whose benefit the damage was occasioned. In Butte, A. & P. R. Co. v. M. U. r. Co. 16 Mont. 504, 41 Pac. 232, it was held that the expense of a watchman at the crossing should be imposed upon the new road. In West Jersey & S. R. Co. v. Atlantic City & S. T. Co. 65 N. J. Eq. 613, 622, 56 Atl. 890, 894, the eourt said:

“There seems to be no equitable ground which requires the senior company presently in occupation to pay anything to enable the júnior company to construct its own crossing in such á manner that it shall not impair rights of the senior company already vested and in enjoyment. It is the duty of the junior company so to build its tracks over the senior company’s rails that the crossing may be safe.”

To the same effect are the following cases: Winona & S. W. R. Co. v. C., M. & St. P. R. Co. 50 Minn. 300, 52 N. W. 657; Elkins E. R. Co. v. W. M. R. Co. 163 Fed. 724; St. Louis, J. & C. R. Co. v. S. & N. W. R. Co. 96 Ill. 274; Chicago & W. I. R. Co. v. E. C. R. Co. 115 Ill. 375, 4 N. E. 246.

It would be useless to attempt a general review of all the *165 authorities. We shall refer, however, to' some of the cases mainly relied upon by the respondents; and in considering the authorities it must be borne in mind, as before stated, that the question here is not as to when and under what circumstances the state can, under the reserve power, alter or amend its contract with the corporation or take property under a reasonable exercise of the police power in the interest of the public, but whether it can take the property of one lawfully acquired under legislative authority and give it to another without compensation to the owner. In Chicago, St. P., M. & O. R. Co. v. C., M. & St. P. R. Co. 113 Wis. 101, 87 N. W. 1085, 89 N. W. 180, the question arose under a contract as to the meaning of “other similar appliances,” and it was held that they did not include an interlocking system, since such system could not have been in the contemplation of the parties when the contract was made. The question arose under a contract between the two companies, parties to the contract, while here the Commission determined what shall constitute a proper crossing. In Railroad Commission Cases, 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, the question was as to the right of the state to regulate rates and fix a minimum transportation charge. In Pennsylvania R. Co. v. Miller, 132 U. S. 75, 10 Sup. Ct. 34, the question arose as to the right, under a change in the constitution of the state, to recover consequential damages in a condemnation proceeding, and the court held -that, since there was no exemption, from future liability for such damages, it took its charter subject to such liability created by general, law in respect to the subject matter involved. In Chapin v. Crusen, 31 Wis. 209, the case grew out of a ferry franchise which was held to be a mere license, and even in that case the court recognized the doctrine that vested property rights could not be destroyed. Chicago & A. R. Co. v. Joliet, L. & A. R. Co. 105 Ill. 388, is where the question arose on stipulation entered into between the roads. Cincinnati, I. & W. R. Co. v. Conn *166 ersville, 170 Ind. 316, 83 N. E. 503, involved tlie question of right to damages occasioned through compliance with police regulation. Grand Trunk W. R. Co. v. Railroad Commission, 40 Ind. App. 168, 81 N. E. 524, involved contract rights between the roads respecting an interlocking system. Northern P. R. Co. v. State ex rel. Duluth, 208 U. S. 583, 28 Sup. Ct. 341, holds that the police power of the state cannot be contracted away.

Many other cases cited by respondents involve the exercise of the police power, and where no question of vested property rights between the roads existed, and crossings of streets or public highways. The case most in point cited by respondents is Lake Shore & M. S. R. Co. v. C., S. & C. R. Co. 30 Ohio St. 604. This case appears in a degree to support the respondents’ contention, although it recognizes the right of the senior road to have compensation for its property. The case does not seem to rest on a statute like ours (subd. 6, sec. 1828, Stats. 1898), and if any such statute existed in Oliio at the time the road was built, which we fail to find, it was not considered by the court as controlling in any way in the case. We have seen from the authorities cited that the crossing road at common law was bound to restore the senior road as far as possible to its former -serviceableness and pay all damages occasioned by the crossing, and our statute referred to manifestly was passed to protect that property right and remove any question on the subject.

3. It is further contended by counsel for appellant that ch. 454, Laws of 1907, is invalid, since it purports to invest the Railroad Commission with power to fix the proportion of the expense of crossing, and is therefore a delegation of legislative power or a vesting of the Commission with judicial power. We do not regard this position tenable. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 905; Madison v. Madison G. & E. Co. 129 Wis. 249, 108 N. W. 65; State ex rel. Kellogg v. Currens, 111 Wis; 431, 87 N. W. 561; Nash v. Fries, 129 Wis. *167 120, 108 N. W. 210; Dowling v. Lancashire Ins. Co. 92 Wis. 63, 65 N. W. 738; Union B. Co. v. U. S. 204 U. S. 364, 27 Sup. Ct. 367.

4. It is settled that unless the order of the Railroad Commission he unlawful or unreasonable it cannot be disturbed. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 905. The Commission, as appears from its opinion printed in the record by the respondents, indicates that it considered under “the plain mandate of the statute” that it was compelled to distribute the burden as it did, and that it was not concerned with the elements of damage to which the appellant was entitled under subd. 6, sec. 1828. The court below seems to have taken the same view, as appears from the memorandum opinion filed, in which it is said that if the appellant has the right to recover such expenses that is a matter to be considered by the condemnation commission. It is quite obvious, therefore, that both the Railroad Commission and the court below were in doubt as to what damages should be recovered in the corn demnation proceedings, and intended to leave that matter for future determination. If the purpose of the Railroad Commission in making the order, and the court in affirming it, was to negative the right of the appellant to recover the damages caused by the crossing, including maintenance of the crossing and construction and maintenance of the interlocking, derailing, and signal system, the Commission and court were wrong and acted without authority in that regard. But, on the other hand, if the purpose was to apportion the expense to be charged to each road in the future, leaving the amount of damages occasioned by the crossing to be awarded by the commissioners appointed by the court in the condemnation proceedings, then the order of the Commission is within the law. This seems to have been the theory of the Commission and the court below, and we think is the most practical and workable construction of the statute.

It follows from what has been said that upon the case made *168 the appellant should recover in the condemnation proceedings all damages caused by the crossing of the senior road by the junior road, including cost of grading, rails, frogs, switches, and other appliances used in constructing and maintaining the crossing, as well as the cost of constructing and maintaining the interlocking, derailing, and signal system. The judgment should therefore be modified so as to make clear this idea.

By the Court. — The judgment of the court below is modified so as to affirm the order of the Railroad Commission without prejudice to the appellant’s right to recover all damages as indicated in this opinion, and as so modified is affirmed. No costs are allowed either party upon this appeal, except that respondents pay the clerk’s fees.