Page:St. Louis Southwestern Railway Co. v. Missouri Pacific Railroad Co. (185 Ark. 824).pdf/2

 Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge; affirmed.

Carter, Jones & Turney and Lamb & Adams, for appellant.

R. E. Wiley, for appellee.

HUMPHREYS, J. Appellee, a railroad company doing an interstate and intrastate business, and owning terminal facilities in North Little Rock, Arkansas, filed its application with the Arkansas Railroad Commission under § 1643 of Crawford & Moses' Digest, to fix the point and manner of crossing with a proposed spur, an industrial track of appellant, for the purpose of serving directly the cotton seed oil plant in North Little Rock, which proposed spur was to extend from its own track a distance of 5,460 feet in a south and southeasterly direction to the plant and property of said National Cotton Seed Products Company. Notice was given to appellant, and the application and appellant's objections thereto were heard upon testimony adduced by each with the result that appellee's application was denied, from which an appeal was prosecuted to the circuit court. The circult court heard the cause, quashed the order of the Commission, and fixed the point of crossing at grade 265 feet east from its switch connection with the main lead switch or old main line of the St. Louis Southwestern Railway Company, and directed the Commission to proceed in conformity with its order, from which is this appeal.

Appellant contends the circuit court erred in directing the Commission to fix the point and manner of crossing, because, first, under the statute it has no authority to act until appellee acquires the right-of-way by condemnation proceedings, and, second, until it obtains a certificate of convenience and necessity for the crossing from the Interstate Commerce Commission as provided by paragraph 18 of § 1 of the Interstate Commerce Act.

(1) The section of Crawford & Moses' Digest, referred to and made the basis of appellee's petition, in so far as applicable here, is as follows: