*370The opinion of the court was delivered by

Redfield, J.

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 *371the commissioners extends beyond those cases, where the company are rightfully subjected to damages, under the charter provisions, for acts which they may rightfully do, by virtue of the authority therein conferred. Beyond that, if they incur liabilities, either for torts, or by way of contract, they are liable like other persons. So that the question, how far this matter comes within the jurisdiction of the commissioners, depends upon the prior question, whether the liability is one for an act, which they had the right to do by the charter, or is a mere tort. And as it seems to be supposed on all hands, that the act itself is clearly within the charter rights of the company, if done in such a manner, as to be the act of the company, the questions of liability and jurisdiction are identical.*

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 *372and the company, it is, in my opinion, his own folly, and he is in the same position, as if he had notice of the contract. For he no doubt knew enough to put him upon inquiry, and is therefore affected with the notice of such facts, as he might have ascertained upon reasonable inquiry. And if it be viewed as a mere tort of Belknap, it is very questionable, in my mind, how far, upon common principles, the company could be made answerable for the act, as being in effect the act of their agent. Some of the cases, perhaps, go that length. But those entitled to the most consideration seem to stop somewhat short of that point. It would seem from some of the recent cases, — Rapson v. Cubitt, 9 M. & W. 709, and cases there referred to, and Millegin v. Wedge, 12 Ad. & El. 177, — that the relation of master and servant must exist, in order to make one liable for the torts of the other, unless there is an express or implied permission to do the act. The case of obstructions on one’s premises, of the nature of nuisances, by which injury occurs to others, rests upon different grounds.

*371Note by Redfield, J. Since the decision of this case, it has been somewhat questioned, by some, whether the company itself has any right to take materials for building its road, beyond the limits of the survey. That question was not made or considered by the court, in this case, and, if it be a question, is one involving constitutional considerations of a character which might require serious discussion and grave inquiry. But at present I should be inclined to suppose it must depend upon the necessity for taking such materials, and that it is therefore a question of fact mainly. But in a case like the present, where the land owners preferred the responsibility of the corporation, they would naturally decline contracting with the contractors for building the, road, which would create the necessity, contemplated in the charter.

*372But we think the case before us is entitled to a different consideration. The power conferred upon railroad corporations, to take the land and other materials adjoining the line of the road, for the purpose of constructing the road, is one in derogation of the ordinary rights of land owners, and one which could only be conferred by the legislature by virtue of the right of eminent domain, and because it is necessary to the reasonable exercise of sovereignty. And we think it is one, which is as necessary to exist in and be exercised by all the contractors on the road, as by the corporation. Indeed, it is only for that purpose that it is important. And whether the corporation construct their road themselves, or by contract with others, is unimportant. This is a power, which must go with the contract, which is indispensable to the building of the road, which must be understood to go with the contract, which is in fact never exercised by the board of directors of the company, but always by the builders, under the supervision of the engineers, and which must of course be exercised only within reasonable limits and in a proper manner. The very words of the statute show by whom it was expected this power would be exercised, — “ by engineers, agents, or workmen.”

This, then, being a power, which was conferred by charter upon *373the company, and which of necessity pertains to the contractors, as a necessarily delegated office from the company to the contractor, and which they must expect him to exercise, it is the same, as if in express terms it were stipulated, that he may exercise it. For this purpose, then, the contractor is the agent of the company. And as the proprietors of the land cannot resist the contractor, because he is clothed with the authority of the company, it would be hard, if they could be compelled to look to any and every contractor, to whom the company might see fit to turn them over. Any stipulation between the contractor and the company is of no importance to the land owners. It is merely a private arrangement between the company and contractor, as to the mode of coming at the price of the work.

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.