STATE HIGHWAY COMMISSION
v.
CLINCHFIELD RAILROAD COMPANY.
No. 19.
Supreme Court of North Carolina.
October 9, 1963.*597 A. K. McIntyre, Erwin, Tenn., and E. P. Dameron, Marion, for appellant.
T. W. Bruton, Atty. Gen., Harrison Lewis, Asst. Atty. Gen., and John C. Daniel, Trial Atty., for appellee.
BOBBITT, Justice.
While the preamble of the resolution or ordinance adopted April 13, 1962, recites, inter alia, that "the Commission has determined and finds that the conditions existing at said grade crossings are dangerous to the safety and convenience of the traveling public and should be eliminated," there are no findings of fact or recitals as to actual conditions with reference to said crossing. Nor does it appear that evidence as to such conditions was offered at any of said meetings of the Commission.
The hearing in the superior court was on a record consisting of the minutes of said meetings of the Commission and of the Chairman's order of April 26, 1962. There were no "pleadings."
Was Secondary Road 2105 in existence when Clinchfield constructed its track? Was the grade crossing, prior to the widening of the paved portion of Secondary Road 2105 from 16 feet to 18 feet, in such condition it unduly interrupted or impeded the free and safe movement of traffic at the crossing? Did Clinchfield benefit by such widening? Why the requirement that Clinchfield construct (extend) the crossing *598 five feet each side of the paved or traveled portion of the road? Was Clinchfield the owner of the fee or of an easement in the land comprising said grade crossing? Answers to these and other factual questions may be of significance in determining whether Clinchfield is obligated at its own expense to construct the extension ordered by the Commission's resolution or ordinance of April 13, 1962.
We do not consider Clinchfield's contentions that the Commission did not comply with the procedural requirements of G.S. § 136-20 or with constitutional requirements of due process. Decision is based on the ground G.S. § 136-20 has no application to the factual situation disclosed by the record before us.
G.S. § 136-20(a) provides, inter alia, if a grade crossing, in the opinion of the Commission's Chairman, "is dangerous to the traveling public, or unreasonably interferes with or impedes traffic" on a State highway, the Commission shall notify the railroad company to appear before the Commission and show cause why it "shall not be required to alter such crossing in such way as to remove such dangerous condition and to make such changes and improvements thereat as will safeguard and secure the safety and convenience of the traveling public thereafter."
G.S. § 136-20(b) provides, in part, after service of notice as prescribed, "the Commission shall hear said matter and shall determine whether such crossing is dangerous to public safety, or unreasonably interferes with traffic thereon. If it shall determine that said crossing is, or upon the completion of such highway will be, dangerous to public safety and its elimination or safeguarding is necessary for the proper protection of the traffic on said State highway, the Commission shall thereupon order the construction of an adequate underpass or overpass at said crossing or it may in its discretion order said railroad company to install and maintain gates, alarm signals or other approved safety devices if and when in the opinion of said Commission upon the hearing as aforesaid the public safety and convenience will be secured thereby. And said order shall specify that the cost of construction of such underpass or overpass or the installation of such safety device shall be allocated between the railroad company and the Commission in the same ratio as the net benefits received by such railroad company from the project bear to the net benefits accruing to the public using the highway, and in no case shall the net benefit to any railroad company or companies be deemed to be more than ten per cent (10%) of the total benefits resulting from the project."
Extensive subsequent provisions of G.S. § 136-20 relate directly and exclusively to orders, plans, work and apportionment of cost in connection with construction of underpasses or overpasses or the installation and maintenance of gates, alarm signals or other safety devices at such grade crossing.
Careful consideration impels the conclusion G.S. § 136-20 applies only to a factual situation for which provision is made, namely, the construction of an underpass or overpass or the installation and maintenance of gates, alarm signals or other safety devices.
No opinion is expressed or intimated as to whether, upon facts established in a properly constituted action, Clinchfield is obligated to make the improvements contemplated by the Commission's resolution or ordinance of April 13, 1962, wholly or partly at its own expense.
Being of the opinion G.S. § 136-20 does not apply to the factual situation disclosed by the record before us, the judgment of the court below is reversed, and the proceeding is remanded with instructions that the court below enter judgment dismissing the purported proceeding (to the extent it relates to said Rutherford County crossing) without prejudice to the Commission's right to take such further action as it may deem appropriate.
Reversed and remanded.