(dissenting).
I would affirm the decision of the trial court.
The majority opinion, in its attempt to single out specific sections within the text of the public utility law covering in excess of 450 pages, overlooks contrary law relating to control of railroad crossings under SDCL 31-27. We need not depend upon decisions of courts of other states predicated upon laws distinct to their state, such as California, North Dakota, Pennsylvania and Iowa, but should attempt to analyze our own codified laws. This court should recognize that Title 49, among all of the 62 titles within the South Dakota Codified Laws, is the title which contains the most surplusage and the most archaic language within our law and that SDCL 49 has pyramided from the inception of railroads without taking into account changing conditions over the years or the effect of other legislation.
The majority opinion concludes that the safety of railroad crossings is a matter of statewide concern and should not be left to the individual regulation of various municipalities and cites a California case. SDCL 31-27-4 and 31-27-5, as construed by this court in Board of Commissioners, Spink County v. Chicago, M. & St. P. Ry. Co., 1911, 28 S.D. 44, 132 N.W. 675, along with the attorney general’s rulings 1921-22, pp. 62-63 and 1923-24, p. 335 construing these statutes, recognizes the duty of not only the Department of Transportation but also the boards of county commissioners and, indeed, city commissioners, where a city crossing is involved, to eliminate hazards of railroad crossings with public highways. I perceive no need for this court to repeal these statutes by decision.
The majority opinion cites SDCL 49-7-3 as authority for primary jurisdiction being in the Public Utilities Commission. No doubt the commission has the power and also the duty to promulgate rules in this area but it has failed to do so. A reading of the 1974 publication of the Administrative Rules of South Dakota, together with the 1975 supplement thereto, discloses no rule or regulation which to me indicates that the public utilities commission has fulfilled its duty under SDCL 49-7-3 to the extent that it is authorized and mandated to provide standards for such crossings. Until the commission has done so, the city’s jurisdiction cannot have been said to be preempted.
While I acknowledge that the general supervision of utilities is provided for in SDCL 49-3-4, I am convinced that SDCL 49-3-23, which reads as follows, is controlling:
“49-3-23. Any person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the public utilities commission or may bring suit on his own behalf for the recovery of damages for which any common carrier may be liable under the provisions of chapters 49-3 to 49-12, inclusive, in any court of this state of competent jurisdiction, but such person shall not have the right to pursue both of such remedies at the same time.”
This statutory provision gives a person (including the appellant railroad company, SDCL 2-14-2(16)) claiming damages to its property interest, in this case a fee title, on account of an act of a telephone company (a carrier by definition, SDCL 49-3-1) an option to proceed either in the courts or with the Public Utilities Commission. In this case the appellant has elected, by its counterclaim, to litigate the matter of damages *644in the circuit court, as is its right. Appellant cannot have it both ways and the decision of the trial court should be affirmed.
I would hold, based upon the counterclaim of appellant which invoked the court’s jurisdiction under SDCL 49-3-23, that the appeal must be dismissed. Appellant is not aggrieved by the judgment. Woods v. Pollard, 1900, 14 S.D. 44, 84 N.W. 214; Severin v. Medearis, 1923, 46 S.D. 408, 193 N.W. 138; Nilsson v. Krueger, 1943, 69 S.D. 312, 9 N.W.2d 783. I would affirm the trial court on the remaining issues by holding that the circuit court, under SDCL 21-24, made a proper determination of the rights of the respective parties.