¶1 concurring:
¶2 I agree that the rulings of the Circuit Court in these proceedings should be reversed; that the conclusion of the court that, on the record considered, the discretion of the state road commissioner was not abused is correct; that no fraud on the part of the commissioner was shown in the case; and that, upon the record presented, the petitioner showed a clear right to condemn a right of way for a road over defendant’s properties. But I do not concur in giving to the order of reversal the effect of requiring the circuit court, without further hearings on the facts, to enter an order giving the State the right to enter upon the property involved under applicable provisions of law. I think that, in the peculiar circumstances presented, the case should be remanded to the circuit court with directions to require a survey and location of a proposed highway on what is termed the “old location”, with such changes in the road location as will remove the same from the creek and the railway underpass. This, I understand, will involve a railroad grade crossing, and the erection of a bridge over Copen Run. *165 But even so, I am of the opinion that other considerations call for further exploration of the possibility of locating the highway on the old location as changed in the respects indicated above.
¶3 Of course, if the Federal Public Roads Administration will not, in any event, permit the use of Federal money on the old location, and the cost of a right of way on the new location does not appear to be probably prohibitive, then, to obtain Federal aid, the road must be located on the new location. I think, however, that the record discloses that the old location, on the left side of Copen Run, travelling upstream, has not been presented to the Federal Roads Administration in its most favorable aspects. For example, the old location, the one first presented by the Road Commissioner to the Federal Public Roads Administration, was partly in the creek, passed under the railroad bridge, in the bed of the creek, and during high water the road located thereon was impassable. Of course, no competent engineer would agree to such a location for a public highway, and naturally when it was proposed to the Federal Administration there was a prompt refusal to permit the expenditure of Federal money thereon. It appears, however, that by a change in a part of the old location the road' in its entirety can be located and constructed above high water mark, although this will involve a crossing of the railroad at grade, and the erection of a bridge over Copen Run, but these facts are not shown to have been submitted to the Federal authorities, as they should have been. The record further discloses that, aside from the cost of the right of way, the road can be constructed on either side of Copen Run at practically the same expense; and when so constructed will furnish equally reasonable and safe means of transportation. This being true, I think the following suggestions furnish good grounds for the position that there should be further investigation of the old location, and the changes which can be made therein, before any final order is entered adopting the new location.
¶4*166 (1) The new location involves the use of a bridge across Copen Run near its mouth. This is a seven-ton capacity bridge, and is located below high water mark. Therefore, in flood periods, the road on the new location cannot be used to connect with other highways.
¶5 (2) A number of people reside along the old location, which creates the necessity for maintenance of the old road. For the greater part of the distance involved in the proposed reconstruction, if the new location is adopted and used, there will be two roads, where one will suffice.
¶6 (3) The expense of the two roads, other than the cost of rights- of way, will be substantially the same.
¶7 (4) When located and constructed, the facilities for public travel will be equal, whichever location is adopted, except for those who reside along the old road, who, in using the new road, would in many instances have to travel a greater • distance; and
¶8 (5) There is the question of damages to land owners in securing the new location. This, of course, is not directly involved in the present proceeding, but is one which the road commissioner should take into consideration in making his decision.
¶9 Considering these suggestions in their entirety, I think the case should be reversed and remanded tp the circuit court, with direction, that, before finally passing upon the State’s petition to condemn the land, required for the new location, there should be a new survey and location of the highway on the left side of Copen Run, known as the old location, with such changes therein as will provide a safe railroad crossing, and keep the road above high water mark, and that the report thereof be presented to the Federal Public Roads Administration. If the old location, as changed, should be acceptable to the Federal Roads Administration, then I think a serious question would arise whether the road commissioner would be justified in exercising his discretion in favor of *167 adopting the new location. I realize that a railroad grade crossing is an undesirable element in highway location, and one which might properly determine the decision of the matter by either the Federal Public Roads Administration or the State Road Commissioner in the matter at bar. I agree that there is vested in these agencies a wide discretion in the matter of the location of public highways, but I hope a situation may be brought about where the merits of the two locations can be fairly presented. To the present date, I do not think this has been done in this ease. For this reason I would like to see a further development of the facts, and on this preliminary question I see no reason why that course should not be followed.