71 Iowa 626 | Iowa | 1887
We think this instruction cannot be sustained. It puts a mere subcontractor in the place of the company, and authorizes him to determine the question whether the act complained of was necessary to the construction of the embankment. And the evidence does not show that it was necessary to take the earth from outside the right of way. As we read the evidence, earth could have been obtained, for all the puqioses required, without making an unreasonable haul. Now, if the subcontractor had no authority from his principal to trespass outside the right of way, and he willfully did so without the assent of the company, the latter is not liable for his willful trespass. We do not determine the evidence necessary to establish such assent. It appears that stakes were set at the outer edge of the land taken, and these stakes were similar to the grade stakes used on the line, and had marks and figures upon them. If these stakes were set under the direction of an engineer of construction, that fact would be competent evidence upon the question as to the assent of the company. It must be made to appear in some way that the company assented to the trespass, or had such knowledge of it, at the time or before it was done, as that assent might be presumed therefrom. Upon this point, see Steel v. South-Eastern R’y Co., 16 C. B., 549 ; Eaton v. European & N. A. R’y Co., 59 M. E., 520 ; Hughes v. Railway Co., 39 Ohio St., 461. Bevebsed..