Page:California Highways and Public Works Journal Vols 8-9.djvu/18



HE most important grade crossing decision in the history of California was handed down on December 7, 1929, by unanimous decree of the State Railroad Commission. The decision involved a grade crossing on the Bayshore Highway over a spur track of the Southern Pacific near San Mateo.

The California Highway Commission and the Department of Public Works opposed any grade crossing on this highway. The Southern Pacific held that the fact that the track was simply a spur track removed objection to its presence.

The issue was submitted to the Railroad Commission by agreement between the parties.

The decision of the Railroad Commission completely upheld the contention of the state that the Bayshore Highway should be kept free of all Railroad grade crossings.

The mooted question of the priority of highway and railroad rights at the particular crossing was settled by the Railroad Commission distributing the cost of the overhead railroad structure, ordered by it between the state and the Southern Pacific on a fifty-fifty basis.

TEXT OF DECISION

The decision of the California Piailroad Commission in full follows : The Department of Public Works of the State of California, through its director, raised the question as to whether or not this Commission could afford the department any relief in connection with a controversy which had arisen between it and Southern Pacific Company, in connection with the construction of a new state highway (Bay Shore) over a disconnected spur track built by Southern Pacific Company near the southerly limits of the city of San Mateo. Thereupon the Commission, on its own motion, instituted an investigation into the installation, maintenance, protection and operation of said crossing. Hearings were held at San Francisco on October 18th and 29th, at which time both parties agreed to submit to the Commission, for determination, the question as to how the projected crossing between the railroad and highway should be effected and apportion the cost of the same.

The Bay Shore Highway is being constructed for the purpose of providing, in advance of development, a thoroughfare which can be maintained as a permanent high-speed artery to ultimately connect the city of San Francisco with San Jose by a route along the westerly shore of San Francisco Bay, which is, in general, at some distance from the built-up section of the peninsula. With the intense development of this territory the need of this artery will be far greater than at present and it has been located so as to avoid the delays incident to travel over El Camino Real, the present state highway. If this purpose is to be acomplished. there must be a minimum of obstructions by the cities en route and by other agencies.

The highway has been constructed and is now open to travel between San Francisco and Fifth avenue, in the city of San Mateo. Beyond Fifth avenue, the proposed route follows a dedicated public street for a short distance and then continues across private property, known as the Emma Rose Estate, The state, at the present time, owns no right of way across the Emma Rose property but, on April 16th of this year, filed a condemnation suit against Emma Rose and Southern Pacific Company, It has declared its intention to construct the highway southerly from Fifth avenue to Palo Alto during the next year.

Southern Pacific Company has, for some time, carried on negotiations with the Emma Rose Estate for the construction of a spur track into the property to be developed for industrial purposes. On March 18, 1929, a fifty-foot right of way for a spur track, connecting with the main line of Southern Pacific Company near its Leslie Station, was deeded to Southern Pacific Company and immediately Southern Pacific Company laid approximately 1400 feet of skeleton track on this right of way, a portion of this construction being across the proposed routes of both the Bay Shore Highway and the Western Pacific California Railroad Company, a subsidiary of The Western Pacific Railroad Company. This skeleton track does not connect with any track of Southern Pacific Company and, at its nearest point, is 2200 feet distant from the nearest operative track. The ties on which the rails are spiked are widely spaced; no ballast has been applied and the entire construction is such as to be incapable of being subject to railroad operation even if it were physically connected to operative trackage.

The Commission can not recognize a mere intention of the state or other political body, to acquire a right of way and construct a public thoroughfare, as constituting a public road such as referred to in section 43 of the Public Utilities Act, nor, on the other hand. can it consider a few connected rails and ties, which are incapable of being operated over as a railroad, as being the track of a railroad referred to in that section. In the present case, however, a full and complete record as to the necessity, hazards, terms of installation and manner of crossing, has been developed and, since both parties have submitted the matter to this Commission for decision, it appears appropriate that the Commission finally determine the crossing matter at this time, particularly since it is apparent that both the highway and spur track will be constructed in the near future.

While the evidence in this case shows that for some time to come the switching operations over the railroad would not seriously interfere with the full use of the new highway, yet if the purpose of the state