COMBS, Justice. The Louisville and Nashville Railroad Company plans to construct a railroad track from what is known as its 'Strawberry Yards' in Jefferson County to an industrial plant now being constructed by the General Electric Company near the small town of Buechel, in Jefferson County. The proposed new track will be 5.75 miles in length, and will cross three roads within the County. The Company filed application with the Jefferson County Fiscal Court for permission to lay its track across the three roads at grade level. The Fiscal Court denied the application for the expressed reason that it is 'unwilling to authorize additional crossings at grade.' It appears that the Fiscal Court has adopted the general policy of requiring road crossings constructed in Jefferson County in the future to be by underpass or overpass.
The County filed this suit for an injunction to prevent the Company from laying its track across the roads in question at grade level. The Company, by answer and counterclaim, asked that the County be enjoined from interfering with it in the construction of its track across the roads, and also that the Fiscal Court be required to approve its application to cross the roads at grade level. The trial judge held, in a well-reasoned opinion, that the County has no legal authority to prevent the Company from laying its track at grade level across the three roads. Judgment was entered accordingly, and the County appeals.
Two grounds are urged for reversal: (1) The proposed crossings will constitute a public nuisance, which the County may prevent by injunction; and (2) the proposed construction is an extension of the Company's line of railroad, and no certificate of public convenience and necessity has been obtained from the Interstate Commerce Commission, as required by the Federal Transportation Act. 49 U.S.C.A. § 1.
It should be noted at the outset that the three roads in question are county roads, not a part of the primary road system of the state, and not within the corporate limits of the City of Louisville. The Highway Department has statutory authority under certain circumstances to eliminate hazardous grade crossings over roads which are part of the state primary road system. The Legislature has also conferred on cities of the first class limited authority to accomplish the same purpose as relates to hazardous crossings within the city. But these statutes are not applicable here. It is stated in the County's brief that 'Appellants do not claim that Jefferson County, through its Fiscal Court, or at all, has the power, such as is possessed by the State under KRS 177.120, and by a city of the first class under KRS 93.280, to prevent a railroad company from crossing a county road at grade.'
The Company relies chiefly upon KRS 277.060, which reads in part:
'(1) Every railroad company may: * * *
'(h) Construct its road upon or across any private road, highway, street, lane or alley, and across any railroad, canal or watercourse.
'(2) Every railroad company shall restore to its former condition, as near as may be, any private road, highway, street, lane, alley, railroad, canal or watercourse upon or across which it has constructed its road, and shall maintain the same in that condition within the right of way of the railroad company. It shall construct suitable road and street crossings for the passage of traffic by putting down planks or other suitable material between and on each side of the rails, the top of which shall be at least as high as the top of the rails.'
KRS 179.290 provides: 'Every railroad company, including traction line companies, which obstructs any public road, shall as far as possible put the road so obstructed in as good condition at every crossing of the railroad as it was before the obstruction, within six months after the completion of the construction, repair or use of the railroad.'
We have consistently said that under these two statutes a railroad company may lay its tracks across a county road at grade by complying with the statutory requirements in regard to the construction of the crossing and thereafter restoring the road as nearly as possible to its original condition. Louisville & Nashville R. R. Co. v. Commonwealth, 149 Ky. 459, 149 S.W. 898; Louisville and Nashville Railroad Company v. Hopkins County, 153 Ky. 718, 156 S.W. 379; County of Jefferson v. Louisville and Interurban Railroad Company, 155 Ky. 810, 160 S.W. 502; Illinois Central Railroad v. Covington, 211 Ky. 825, 278 S.W. 109.
Although KRS 67.080 enjoins the Fiscal Court with the duty of providing for the 'good condition of the highways in the county', it is clear that a county has no statutory authority to prevent a railroad from crossing a county highway at grade level.
The County does not stress its contention that the proposed crossings will constitute a public nuisance, and we find no merit in this agreement. If the crossings are constructed and maintained in a legal manner, under a statutory right, they cannot be said to constitute a public nuisance. Commonwealth v. Phoenix Amusement Co., Inc., 241 Ky. 678, 44 S.W.2d 830; Illinois Central Railroad v. Covington, 211 Ky. 825, 278 S.W. 109. The case of Chesapeake and Ohio Railway Company v. City of Bellevue, 239 Ky. 61, 38 S.W.2d 943, cited by the County on this point, is not applicable. In that case the railway company made the street impassable for vehicular traffic by the construction of a fill in the street.
The principal question in the case is whether the Railroad Company is required to obtain a certificate of public convenience and necessity from the Interstate Commerce Commission as a condition precedent to the construction of the proposed track. The answer to this question hinges on whether the proposed track is an extension of the Company's line, or is merely a spur or industrial track, as those terms are used in the Federal Transportation Act. 49 U.S.C.A. § 1. Section 1(18) of the Act provides: 'No carrier by railroad subject to this chapter shall undertake the extension of its line of railroad, or the construction of a new line of railroad, or shall acquire or operate any line of railroad, or extension thereof, or shall engage in transportation under this chapter over or by means of such additional or extended line of railroad, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, or construction and operation, of such additional or extended line of railroad, * * *.'
Section 1(22) provides: 'The authority of the commission conferred by paragraphs (18) to (21), both inclusive, shall not extend to the construction or abandonment of spur, industrial, team, switching, or side tracks, ...