Page:St. Louis Southwestern Railway Co. v. Missouri Pacific Railroad Co. (185 Ark. 824).pdf/3

 "Crossings. The commission shall have exclusive power to determine and prescribe the manner, including the particular point of crossing and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of one railroad by another railroad, or street railroad by a railroad, so far as applicable."

It will be observed that there is nothing in the statute relative to a condemnation of the right-of-way before the Commission can proceed to fix the place and manner of a proposed crossing of one railroad by another. The legal right of one railroad to cross another exists by virtue of § 1 of article 17 of our Constitution, which is as follows:

"Every railroad company shall have the right with its road to intersect, cross and connect with any other road."

Therefore, it is unnecessary to acquire a legal right for railroads to cross or intersect each other by a proceeding in court. As stated above, that right exists under our Constitution. Of course, it would be necessary if railroads could not agree as to the compensation or damages to condemn the right-of-way in order to determine the amount of compensation or damage, but it seems to us that the orderly way would be to first fix the place and manner of crossing and then proceed in the proper tribunal to condemn the land needed to effect the crossing at the place fixed or designated. The case of Missouri K. & T. R. Co. v. ''St. Louis S.W. Ry. Co.'', (Tex. Civ. App.) 239 S.W. 337, cited by appellant in support of its contention that condemnation proceedings must be brought and determined before the Commission can fix the place and manner of crossing, has no application in the instant case because in Texas the right to cross must first be determined by the judgment of a court; whereas in this State the Constitution fixes the right to cross.

(2) Paragraph 18, § 1, of the Interstate Commerce Act referred to by appellant in support of its second contention, in so far as applicable, is as follows: