*777On Rehearing.
LAND, J.The sole demand of the plaintiff corporation is for a crossing over the right of way of the defendant corporation. No express legislative authority is required in- such eases.
“In the construction of railways it necessarily occurs that highways and other railways must be crossed, and, although the power is not expressly giver, it is necessarily inferred.” Wood, Railway Law, p. 703, quoted in Railroad Co. v. Railroad Co., 48 La. Ann. 860, 19 South. 869; 15 Cyc. 621.
Article 271 of the Constitution of 1898 provides that “every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad.” Article 272 declares “railways” to be “public highways.” In this sense a railway track and right of way is open to the public for railroad purposes. Our statutes authorizing the incorporation of “railroads” make no distinction between a commercial railroad and a street railroad. The latter must be incorporated as a “railroad,” or not at all, and, if a railroad, then the power to cross other railroads is necessarily implied from its very creation. Of course, there are many differences between the regular railroad and the street railroad; but both are common carriers and quasi public corporations. Street railroads are usually, but not necessarily, confined to the hse of the public streets. They may have in part a right of way of their own, and often expand into suburban and interurban railways. To deny such railways the right to cross other railroads would be to confine their expansion and usefulness within narrow limits. In the ease at bar the plaintiff company, as authorized by its charter, is endeavoring to extend its line beyond the boundaries of the city of Shreveport. In order to do so it is necessary that it should cross the track of the defendant railroad. It has an implied right to do so as a means necessary to carry out the public purpose for which it was incorporated. It also has the constitutional right to do so as a railroad corporation. Ever since the adoption of the Revised Statutes of 1870 street railroads have been incorporated, organized, and operated under general provisions relating to “railroads.” The latest act on this subject authorizes the creation of corporation “for the construction, working and maintenance of railroads.” 1 Act No. 154 of 1902. In the same way all of our expropriation statutes confer the right of eminent domain on “any corporation constituted under the laws of this state for the construction of railroads.” Section 1479 of the Revised Statutes of 1870; Act No. 96, p. 142, of 1896; Act No. 227, p. 457, of 1902. It follows, we think, that street railroads and electric railroads are within the generic term “railroad” as used in our Constitution and statutes, in so> far as the provisions of the same are applicable to that kind of railway. Prior to> 1898 we find no special legislation relative-to street railroads. As to the right of crossing the tracks of other railroads, declared! to be “public highways” by the organic law, there is no difference in principle between.ai street railroad and a commercial railroad:. The necessity is the same in both cases, and! the reason and spirit of the law is the same A recent act of the Legislature empowered police juries to grant and sell franchises on and across the public roads and highways for the construction of railways using electric or any other motive power than steam. Act No. 48, p. 63, of 1906. The plaintiff has acquired such a franchise; but its exercise-is impossible, if plaintiff has not the right to cross intervening railroad tracks. We-think that the right of crossing each other’s tracks is vested in all railroads, not only by necessary implication, but by express *779law. It is not necessary to decide whether street railroads have the power of eminent domain in other respects.
The two constituent companies were properly consolidated as street railroads under Act 100 of 1898, and under the express terms of the statute the consolidated corporation became invested with the charter franchises of both, including the right to extend its lines beyond the limits of the city of Shreveport. The contention that a street railroad must be confined to the municipal highways and cannot extend its lines beyond the boundaries of the municipality is not supported by anything in the legislation of this state.
The franchises of such roads are derived from their charters, and not from city ordinances. It is true that such roads, like the regular railroads, cannot use the streets without municipal license; but no law forbids the construction of any railroad for any public purposes on its own grounds, ■either within or without the limits of a town ■or city.. To confine all railways not using steam within municipal limits would be an .anachronism in this day of rapid transit by ■means of suburban and interurban lines of ¡railway. The Legislature, by Act 48 of 1906, already quoted, has opened all the public ¡roads and highways in the parishes to such ■enterprises. There is nothing in our statutes which forbids the combination of street ¡and other railroads in the same charter. All ¡railroads in this state have always been incorporated and organized under the same statute. Even if the law has been otherwise, the charters now in question were validated by Act No. 120, p. 281, of 1904.
Defendant in the answer says;
“That the proposed crossing is at an extremely dangerous place, and a crossing- at grade should be denied. That your defendant has no-objection to an overhead crossing by said plaintiff, and has requested it to so cross the said right of way; but the said plaintiff has refused to accept such crossing. That your defendant has further offered to let the said plaintiff cross at grade free of cost, if it would agree to remove such crossing after 6 months on 30 days’ notice ; it being the' purpose of your defendant to build and equip the said grounds at_ this point as a part of its yards, and which will be prevented if a crossing at grade is permitted.”
There is in this state no legislation regulating railroad crossings. We are not advised that the railroad commission has enacted any rules on the subject-matter. Grade crossings are customary, and there is no statute or regulation requiring .overhead crossings, however necessary they may be to the public safety in any particular case. We cannot legislate on the subject, nor can we decide cases on a state of facts which has not as yet arisen. We have exhausted our jurisdiction by reserving the legal rights of the defendant which may arise under future changing conditions. In the meantime legislation or regulations as to railroad crossings may relieve the anticipated dangerous conditions, should they arise.
It is therefore ordered that our former decree herein be reinstated and made the final judgment of the court.
MONROE, .1.I am of opinion that plaintiff is a street railroad company, and as such is not vested with the power of eminent domain which it now seeks to exercise. I therefore dissent.