ON PETITION FOR REHEARING. In appellant's brief on petition for rehearing it is said: "It was not heretofore thought that appellee had any authority to determine when a certain community needed a public 6, 7. highway. It was thought that this necessity was determined only by the State Highway Commission, Boards of County Commissioners, City and Town authorities, as provided by law, and to the exclusion of all other authority. *Page 57 It was thought that the appellee had no power to create or establish a highway." From this quotation it is apparent where appellant falls into error. The Public Service Commission has no power to create or establish a public highway, and no such power is asserted. But the statute provides that, before establishing or extending a highway across a railroad at grade, permission must be obtained from the Public Service Commission. Appellant is also in error in believing that highways can only be created or established by the State Highway Commission, Boards of County Commissioners, and city and town authorities. As pointed out in the original opinion, they may be created and established by dedication and public use.
Except for the statute requiring permission of the Public Service Commission before establishing a public highway across a railroad at grade, there seems to be no limitation upon the 8. right to establish such crossings. Aside from the statute in question, we know of no law or reason that would prevent a public highway, privately laid out and dedicated and accepted by the public, from crossing a railroad right of way in the same manner as it would cross a public highway, since, after all, the right of way of a railroad is dedicated to a public use.
The owner of tracts of land separated by the right of way of a railroad may construct and maintain a driveway over the right of way for his own use, and without permission from the 9, 10. Public Service Commission or any other person. There is nothing to prevent the private owner from dedicating such a private driveway to the public, or, without dedication, permitting the public to use it for twenty years, in which case it would become a public highway. We know of nothing in the law that would prevent the establishment of a new highway across a railroad at *Page 58 grade in such a manner unless it be the provision of the statute requiring permission from the Public Service Commission.
Petition for rehearing denied.