
    MISSOURI, K. & T. RY. CO. v. STATE.
    No. 506.
    Opinion Filed May 10, 1910.
    (109 Pac. 65.)
    
      Appeal from Corporation Commission.
    
    Action by the State against the Missouri, Kansas & Texas Railway Company. Judgment for the State, and the Railroad Company appeals.
    Remanded, with direction.
   ON REHEARING.

DUNN, C. J.

This case presents an appeal from an order of the Corporation Commission, made after full hearing, requiring the plaintiff in error to construct and provide a farm crossing over its line of road where the same crosses the farm of the complainant, Milton W. Brown. An opinion was prepared and delivered in this case on April 26, 1908. To this the railway company on May 10, 1908, filed its petition for rehearing and the same was set for oral argument. On this occasion counsel for the railway company on its part voluntarily offered to allow the-Corporation Commission, through its engineer, to locate the crossing involved at any point the lay of the farm and the line of track, would justify, which, if done, will secure to the complainant all the relief which he seeks. This tender on the part of the company for all practical purposes eliminates the chief elements of controversy presented by the record. The only testimony presented by the record is that of the complainant, and, on the part of the companjq that of the road-master and superintendent. No engineer, claiming technical training and knowledge of the matter involved, testified. Under the tender made, the crossing will be located by an expert in such matters, and will doubtless be satisfactory to all parties, and be far better than a prolongation of this controversy.

However interesting it might be to examine the numerous authorities cited and discuss the 'different propositions presented by counsel, it is our judgment that the more important duty for us is to devote the time which this would require to the consideration of some of the numerous other cases now pending before us which absolutely require the preparation of written opinions, rather than to devote it to this case, which under the offer made presents questions but little, if anything,, more than hypothetical. The purpose of this proceeding is to secure a farm crossing for a man who needs it, and as far as possible his convenience should be consulted in its place of location. As long as this ease pends here, he is denied this necessity; hence, to secure this end, the order is made. Under these circumstances, the case is remanded to the Corporation Commission, with directions to have the place of the crossing defi-nately designated and determined by its official engineer, and .the company will then, under its proffer and this judgment, construct a crossing suitable for the uses intended.

The opinion heretofore rendered is hereby set aside.

TURNER and WILLIAMS, JJ., concur; HAYES and XANE, JJ., dissent.  