Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
[64 NJSuper Page 481] Erie Railroad Company, hereinafter referred to as "Erie," appeals from two orders of the Board of Public Utility Commissioners, hereinafter referred to as the "Board," directing Erie to furnish grade crossing protection at the "Dewey Avenue crossing" of the railroad's Greenwood Lake Branch in Singac, Little Falls Township, Passaic County, New Jersey. The crossing protection required was in the form of automatic flashing light warning signals with back lights and bells and appurtenant warning signs. After the first order of December 28, 1959, the Board granted Erie's application for a rehearing. Upon such rehearing, the Board modified its finding somewhat as noted below, but affirmed its direction for the same grade
crossing protection by a second order of April 28, 1960. This court, by order of June 29, 1960, has stayed execution of the Board's orders pending final disposition of this appeal.
On September 1, 1959 a ten-year-old girl, while riding a bicycle on this unprotected crossing, was struck and killed by an Erie train, which was proceeding along its single main line track at that point. Evidently, this unfortunate accident sparked the hearings before the Board, which resulted in its two decisions and orders aforesaid.
Erie first challenges the jurisdiction of the Board to determine that Dewey Avenue is a "public highway" where it intersects Erie's tracks, and that the crossing is a "public crossing."
In its first decision, the Board found "that a public road by prescription has been acquired on lands of the Erie Railroad Company at Dewey Avenue," and that "inasmuch as the crossing in question is a crossing on a public road with the tracks of the railroad, the Board under N.J.S.A. 48:2-29 and N.J.S.A. 48:12-54 has authority to prescribe protection for it." (Emphasis supplied)
In its second decision, the Board expressly rescinded its previous finding that "a public road by prescription has been acquired" as aforesaid and substituted as its finding,
"* * * that a public highway , to wit, Dewey Avenue and the single main line track of the Greenwood Lake Branch of the Erie Railroad cross one another at the same level * * *; and that conditions at such grade crossing make it necessary that some reasonable provision for the protection of the traveling public be adopted." (Emphasis supplied)
Since the Board's earlier finding that "a public road by prescription has been acquired" was expressly rescinded by the Board itself in its second decision, we are not required to pass upon the Board's power to make such a finding of prescriptive property rights. The respondent Township of Little Falls expressly concedes in its brief that "the Board
does not have power under the legislative grant to determine such rights (prescriptive) -- that is solely for our courts to determine." It agrees that In the Matter of Central Railroad Company of New Jersey , 4 P.U.R. 3 d 288 (1953), and New York, Susquehanna & Western R. Co. v. Board of Public Utility Commissioners , 90 N.J.L. 432 (Sup. Ct. 1917), affirmed 91 N.J.L. 701 (E. & A. 1918), so hold. The Board itself makes no contention herein that it has any power to determine proprietary interest ...