tablishing the manner or the character of the same. tention of the law to obviate grade crossings, wherever practicIf it is the inable, it is obvious that the fixing of the point of crossing as well as the manner of crossing should be left to the same authority in order to effectually accomplish the purpose of the enactment. The point of crossing is often the determining factor in establishing whether the crossing shall be above, below or at grade. The separation of grades, when practicable and desirable, can be had at times only at a great expense which the railroads will be reluctant to bear if both must share the cost, as contemplated by the act. The junior road generally desiring to construct its road as cheaply as possible, will favor crossings at grade, while the senior road, naturally desiring a separation of grades, yet, as it will derive no benefit from the crossing, but on the contrary may be injured by reason thereof, will prefer to suffer some inconvenience from a grade crossing rather than contribute any large sum to the construction, maintenance and operation of an overhead or a tunnel crossing. Under the circumstances railroads will find little difficulty in agreeing, when they so desire, that the crossing shall be at a point where separation of grade may be either impracticable or impossible. Furthermore the compensation to be paid the senior road depends in a great measure upon the manner of crossing, and hence cannot be ascertained until the latter is determined. The situation thus suggests a dilemma. If the commissioners appointed under subd. 6, sec. 1828, must first determine the point of crossing and the compensation, and subsequently this Commission is to decide the question of the manner of crossing, it is apparent that such commissioners will be unable to consider the most important elements in assessing damages of which they will not be advised, as such elements will not be ascertained until after they have performed their function. A similar difficulty was encountered in a case arising under the statutes of Michigan, and the supreme court of that state suggested a possible solution of the difficulty. SHERWOOD, J., said:

"It is true that section 36 provides, in case of a disagreement between the parties interested as to the manner the crossing may be made, it shall be determined by the state officers after condemnation has been had. And it is said,

such being the fact, the commissioners or jury, in making condemnation and assessing the damages or compensation provided for, cannot take into consideration all the elements of damage for the want of knowledge in what manner the crossing will be made; whether such crossing is to be at grade, or under or above the respondent's track.

"But under a proper petition, and with proper instructions by the court to the commissioners or the jury as to their duty in the premises, I apprehend no difficulty will be experienced upon this point.

"If, at the time the damages or compensation are assessed, it is not known in what manner the proposed crossing is to be made, it may be submitted to the commissioners or to the jury to find what the damages or compensation should be in either of the three modes which may be adopted in making the crossing." Toledo, Ann Arbor & North Michigan Ry. Co. v. D., L. & N. R. Co. 62 Mich. 564, 573.

In a later case, Flint & Pere Marquette R. R. Co. v. D. & B. C. R. Co. 64 Mich. 350, 362, Justice CHAMPLIN suggests an amendment to the statute considered in the preceding case.

"My own opinion," says he, "is that the statutes ought to be so amended, with reference to crossings and connections of one railroad with another, as to require the company desiring to cross to apply, in the first instance, to the crossing board by petition, and notice to the other railroad company, designating the points at which it designed to cross, to determine the manner of crossing in case the right to cross is acquired by the proper condemnation proceedings. The jury or commissioners would then be apprised of the manner in which the right would be exercised, and the proof of damages and compensation be directed to the exact point. As the statute stands now, it seems rather incongruous."

As we view the situation of the case before us, it is free from the embarrassment found in the New York and Michigan cases. It is our opinion that the angles and points of the crossings were determined primarily when we found upon the hearing of the initial application, made under ch. 454, Laws of 1907, that public convenience and a necessity required the construction of the proposed line of railroad, and approved the map showing the proposed route of said railroad and the angles and points of crossings. At that time. the manner of crossings was expressly reserved by stipula

tion of the parties for future consideration, and independent of any such stipulation it would seem that the statute contemplates a separate proceeding in which such matter is to be determined.

While the conception of ch. 454, Laws of 1907, seems to have been furnished by the New York statutes, and much of the phraseology of the former is taken from the latter, yet the Wisconsin act is more specific in its requirements as to procedure and is generally more comprehensive in its scope than the New York statutes. One of the jurisdictional requisites under our statute is the filing of "complete maps and profiles of the line of the proposed road" with every application for a certificate of convenience and necessity.

"Prior to the granting or refusing of said certificate the commission shall have the right to permit errors, omissions or defects in the application, maps and profiles, to be supplied or corrected, and also to permit changes in the proposed route to be made where the same are deemed desirable." Sec. 1797-43.

Also sec. 1797-43 provides that:

"Such certificate shall be filed in the office of the secretary of state, and a copy thereof, certified to by the secretary of state, shall be evidence of the facts therein stated. Said commission shall also approve the map showing the proposed route of said railroad and shall file the same in their office. The applicant shall cause a copy of such map certified by the secretary of said commission to be a copy of the original, with the seal of said commission affixed, to be filed in the office of the register of deeds in each county in which said railroad shall be located. The filing of said certificate with the secretary of state and the filing of a copy of said map showing said proposed route, as above provided, shall be a condition precedent to the right of said applicant railroad to institute and maintain condemnation proceedings for the acquirement of land for the right of way, stations and other necessary uses of said railroad."

The New York act contemplates the introduction of maps (presumably of a preliminary survey) before the commission for the purpose of enabling the commission to determine whether public convenience and necessity require the construction of the road as proposed in its articles of association, and more particularly designated on such maps. (People v.

Comm'rs, 38 N. Y. Supp. 528.) However, it does not require the filing of such maps or any maps or profiles as a prerequisite of the commission's assuming jurisdiction of the proceeding, nor does it provide for the withholding of the certificate of convenience and necessity until errors, omissions or defects in the application, maps or profiles have been corrected or supplied. It is clear from a reading of the various sections of our statute that it was the intention of the framers that the maps and profiles should control in the matter of authorizing the construction of the road so long as the location designated upon the maps and profiles is within the limits of the route authorized and generally described in the articles of association. Otherwise the particularity required in the matter of location by means of complete maps and profiles would be unnecessary.

A complete map is one which shows the line established by the location survey, with its tangent lines and connecting curves, the survey stationing, the boundaries and dimensions of the right of way, the property owners, land lines, highways, streets, railroads, water courses, and other prominent objects along the route, at such scale and in such detail as to enable the line to be readily identified and retraced on the ground and the right of way to be described with certainty for condemnation or other purposes. A complete profile is one which shows the profile of the line established by the location survey, with the grade line, the rates of grade, crossing of streams, highways and railroads, alignment notes, and such other data as may be required in making a reliable estimate of cost of construction or for other purposes. Morcover, the certificate of convenience and necessity issued to the applicant railway company authorized it to construct its line of railroad "as proposed in its articles of association and as shown by the maps and profiles" accompanying its application and filed with and approved by the Commission. The maps show the points and angles of all the proposed crossings, and the corporation is authorized by the certificate to construct the line shown by such maps, and no other. It must necessarily follow that the authority granted implies the power to cross at the points indicated on the maps.

This seems to us the only logical conclusion that can be reached under the circumstances.

It is also contended that the provisions of sec. 1797-56, giving the Commission power to apportion between the owners of the respective tracks the expense of constructing the crossings, transgresses the constitutional inhibition that the property of no person shall be taken for public use without compensation, and is therefore void. A statute of Michigan to the same effect was declared invalid by the supreme court of that state because, in the opinion of the court, it violated the constitutional guaranty mentioned (Toledo A. A. & N. M. R. Co. v. T. L. & N. R. Co. 62 Mich. 566); but in Ohio such a statute was held valid and enforced by the supreme court (Lake Shore & M. S. R. Co. v. C., S. & C. R. Co. 30 Ohio St. 604; Baltimore & Ohio R. Co. v. Walker, 45 Ohio St. 577). While the question raised is important, it is not one that we may properly pass upon. Until the supreme court has declared it void, the presumption that the law is valid must prevail and govern in all proceedings brought before the Commission in pursuance thereof.

III.

The testimony adduced upon the hearing is voluminous, and no attempt will be made to review the same at length. It appears that the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, commonly known as the "Soo” road, is engaged in the construction of a projected line of railroad, 185 miles in length, beginning at a point on its main line at Brooten, Minnesota, and extending to and through the city of Superior, Wisconsin, and thence to Duluth, Minnesota. At Superior it contemplates the building of a large grain elevator and docks on the bay front, where it has acquired, through the applicant company, a large tract of land partly inundated with the waters of the bay, and known as block No. 500. The applicant is a subsidiary company of the "Soo" road, organized for the purpose of constructing a portion of said proposed line of railway lying within the state of Wisconsin, which, when constructed, will be a part of the main line of the "Soo" road. In order to reach such terminals, as