22 Vt. 365 | Vt. | 1850
This is a petition to this court for a writ of certiorari to the commissioners of the Vermont Central Rail Road Co. for appraising land damages, to certify to us a judgment, or appraisal, which they made against the company for damages in taking stone, drawing them across land, and hewing them on land of the petitionee, — also allowing him costs, — that its correctness may be determined by this court. If their proceedings were substantially correct, we should refuse the writ. We must therefore inquire into their legality. We must be very brief, in regard to most of the points raised.
1. We think the commissioners need not be called out to appraise damages under the sixteenth section, for materials taken to build the road, out of the limits of the survey, until after the materials are ascertained. This seems to us to be the only practicable mode of proceeding in such case, if they would come at a reasonable and just determination in regard to such damages. And it is admitted such, from necessity, has been the practical construction put upon this section.
2. We think, if the company are liable at all in this case, under the facts set forth in the award of the commissioners, it is a proper case for the determination of the commissioners. As is said by Ch. J. Shaw, in Dodge v. County Com’rs of Essex, 3 Metc. 380, if the company keep “ within the scope of their authority, they are not wrong doers,” but are justified by their act of incorporation, and liable to pay damages in the mode there pointed out. We see no good reason, why the right to refer this question to the determination of the commissioners should depend upon the company admitting their liability, and differing only as to the amount of damages, to which the land owner is entitled. It seems to us, that such a rule would be liable to very great abuse. If the company, by their ao-ents, or servants, have so conducted, as to be in fact liable for damages, and the parties cannot agree upon them, then the commissioners are constituted the only proper tribunal, in the first instance, to determine that question, and either party may apply to them and set their action in motion.
Of course it is not intended to say here, that the jurisdiction of
3. In regard to this question, which is the important inquiry in the case, no doubt, it does not appear to us, that a determination upon the general principles of the law of agency wholly reaches the true merits involved. If it were so, I could have no hesitation in saying, the company are not liable for the act of Belknap. One who simply lets a job of work to another is not ordinarily liable, I think, for the acts of that other, whether of tort, or contract, unless there be something in the contract, or the conduct of the work, whereby the act becomes that of the principal, — although there is, I know, some apparent conflict in the cases, not important to be here examined.
It is clear, that these stone were not taken by any express direction of the company, nor for their benefit, as between them and Belknap. And if Baxter had the legal right to resist Belknap, so that he must be considered as having acquiesced in what Belknap did, without informing himself of the nature of the contract between Belknap
This, then, being a power, which was conferred by charter upon
This subject may be very well illustrated, by supposing that the land owners had, by contr-act, conferred upon the company the same rights and privileges, as to building their road, and upon the same conditions, stipulated in the charter, and the company had let the building of the road to this contractor, and he and the land owners had proceeded, in all respects, as they now have. There could be no doubt, I apprehend, that the contractor would have acquired the rights of the company, as to taking and working materials for the road, and, as between himself and the company, would be bound to pay for them; but the land owners might well claim to look to the stipulations in their own contract, and could not, without their own consent,'be turned over to the contractor. This illustration, which, as far as we can see, is every way a fair one, brings the whole subject within a very narrow compass, and renders it sufficiently simple.
Costs seem to be given by the statute, and we do not see that they are unreasonable.
The petition is dismissed with costs.