1. The contract of April 25, 1913, was executed by both parties with all of the required legal formalities.
Counsel have presented numerous points, but under our view of this case the only material one is the question of jurisdiction of the Public Service Commission to make the order mentioned. We do not think that Sections 6 and 8 of Chapter 279, page 483, Laws of 1911, are broad enough or were ever intended to apply to a proceeding of this kind. Any authority of the Public Service Commission to make its order must be found in the provisions of Section 1, Chapter 302, page 577, Laws of 1913, in which it is said that:
“Whenever it shall be necessary for any corporation mentioned in Section 6838 of Lord’s Oregon Laws to appropriate any county road or highway, * # said corporation shall be and it is hereby authorized and empowered to appropriate the same, or so much thereof as may be necessary, and in lieu thereof to condemn or otherwise acquire property contiguous to or as near adjacent thereto as possible, an equal amount of property to be1 appropriated. * * ”
Upon the construction by such corporation of a new road upon any grade which
“may be agreed upon by said corporation and the County Court of the county in which said road is located, and upon the acceptance by such County Court of such newly constructed road, and on the conveyance of same to such county, said corporation shall then become the owner and entitled to the possession *526of so much of said county road or highway so appropriated.”
It is further provided therein that
“in the event the County Court and corporation cannot agree upon the matters herein provided to be agreed upon between said corporation and the County Court, the same shall then be referred to the Railroad (now Public Service) Commission of Oregon, . who shall, after notice and hearing, determine the terms and conditions upon which said corporation may appropriate said county road or highway.”
Either party is given the right of appeal to the Circuit Court and thence to this court.
The agreement between the County Court and the Railroad Company recites:
“That said Willamette Pacific Railroad Company be and it is hereby granted subject to the conditions hereinafter set forth a franchise, authority and privilege to appropriate for the purpose of constructing the said railroad over and across said County Road No. 65”; that the company ‘1 shall have the right, franchise and privilege, subject to the conditions hereinafter set forth, immediately to appropriate the portion of said County Road No. 65 herein provided and designated, at once, and to build and construct its said line of railroad over and across said county road between said points”; that “it is hereby further ordered that said county road shall be appropriated upon the terms and conditions as follows.”
Then follow the agreement of the Railroad Company to build another county road in lieu of the road appropriated, and the time limitation of September 2, 1913, “when the parties shall attempt to agree upon the specifications, locations and time” within which the new county road should be constructed. It is further provided that if the parties shall not be able to agree within the time stated, the Railroad Company “shall *527resort to an action of condemnation under the statute of the State of Oregon in such cases made and provided” and that'such action shall be without prejudice to either party.
On August 30, 1913, the time within which the parties should attempt to agree “upon the specifications, locations and time within which said road” should be built, was extended from September 2, 1913, to September 2, 1914. The petition of the County Court to the Public Service Commission specifically states:
That “the Willamette Pacific Railroad Company on or about the 25th day of April, 1913, appropriated a portion of one of the public highways of Lane County, Oregon, said public highway being known as County Road No. 65”; that “prior to the appropriation” the road had been duly established as a county road; that “said road for a long time prior to the appropriation” had been in use by the people living in the vicinity thereof and was so used “at the time of said appropriation by said Railroad Company”; that “at or about the time the Railroad Company appropriated said county road for the use of constructing thereon a railroad,” it agreed to construct a new public highway on property adjacent or contiguous to the original road; that “the said Railroad Company” had “already appropriated the portion of the county highway heretofore described” and had ‘ ‘ constructed thereon its roadbed and railroad and is operating trains thereon”; that “it is necessary and urgent that the Railroad Company be required to furnish a public highway in lieu of the portion of the county road or highway appropriated by the said company.” •
Such are the terms and conditions of the contract between the County Court and the Railroad Company, and the material allegations set forth in the petition to the Public Service Commission, upon which its order was based.
*528While the County Court and the Railroad Company did not agree upon the specifications provided for by the contract, the fact remains that they did execute the agreement in question and that under the provisions thereof the county road was vacated and appropriated by the Railroad Company, which entered and took possession of the highway and constructed its railroad thereon, and now fails and neglects to carry out its part of the contract.
Section 1, Chapter 302, Laws of 1913, provides:
That “in the event the County Court and the corporation cannot agree,” the subject matter shall then be referred to the Public Service Commission, “who shall, after notice and hearing, determine the terms and conditions upon which said corporation may appropriate said county road or highway.”
But we have here a case in which the parties did agree, and executed the contract, from which as well as from the petition to the Public Service Commission it appears that the company had appropriated the county road and was in possession under its apropriation. The authority so to appropriate was expressly granted by the terms of the contract, and the subject matter of, the present litigation is that identical contract, the terms and provisions of which have been kept by the County Court and violated by the Railroad Company. Under such a state of facts we are clearly of the opinion that the Public Service Commission did not have any authority to determine the terms and conditions upon which an appropriation should be made, or to make the order in question.
The writer of this opinion has no sympathy for, and but little patience with, the conduct of the Railroad Company shown by the record. The company has apparently violated a contract which was made to assist it in the construction of its line of road. Without de*529lay or further litigation, and as a matter of justice, it should either vacate the county road which it took and appropriated under its contract, construct a new county road as it agreed to do, or make a fair and reasonable settlement with the County Court.
The decree of the Circuit Court is reversed, the petition is dismissed and neither party shall recover costs in this court, the Circuit Court or before the Public Service Commission. Reversed.
Bean, Benson and Burnett, JJ., concur.